By Mark Mfikoe, National Director, ECA(SA)
In September, 2018 the Constitutional Court delivered a judgement which effectively declared that: section 4(b) of the Drugs Act was unconstitutional and, therefore, invalid to the extent that it prohibits the use or possession of cannabis by an adult in private for that adult’s personal consumption in private; section 5(b) of the Drugs Act was constitutionally invalid to the extent that it prohibits the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private; and that section 22A(9)(a)(i) of the Medicines Act was constitutionally invalid to the extent that it renders the use or possession of cannabis by an adult in private for that adult’s personal consumption in private a criminal offence.
The question that arises is: What are the implications for an electrical contractor who previously relied on the constitutionality of these prohibitions to manage discipline in the workplace?
The Constitutional Court held these statutory provisions to be constitutionally invalid to the extent indicated because they infringed the right to privacy entrenched in section 14 of the Constitution. The Constitutional Court dispensed with the High Court’s limitation of its order to the use, cultivation or possession of cannabis “at home or in a private dwelling”. It held that the right to privacy extends beyond the boundaries of a home.
Muddies the waters
Some contractors believe – and so do some labour law practitioners – that this judgment somehow muddies the waters as far as dealing with people who use dagga is concerned. Should employers be more tolerant in their dealings with dagga-using employees?
The judgement decriminalises the use or possession of cannabis by an adult in private for that adult person’s personal consumption in private; and it decriminalises the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private.
Ordinarily the cultivation of the herb will not have any implications for the workplace. It is the private use of the dagga that may affect the workplace because the user-employee may arrive at work having privately used the dagga at home. The easiest way to deal with this situation is comparing it with the consumption of alcohol.
Consumption of alcohol for adults is legal in South Africa. In spite of this position, the consumption of alcohol is prohibited in the workplace. Such prohibition exists not because alcohol consumption is illegal but for the reason of safety, which explains why this provision is part of the Occupational Health and Safety Act. It is important to consider where in the greater scheme of things the electrical industry is placed.
This industry is regulated in terms of the Electrical Installation Regulations of which the principal Act is the OHSA. The employer can reasonably adopt a zero tolerance approach and regulate his workplace accordingly. Doing so does not constitute an unconstitutional act and it is not unfair. If usage is for medicinal use and contributes to the health of the employee, this can be an acceptable exception. Please note that the use or possession of cannabis by a child anywhere, or by an adult in public, is not decriminalised. To the extent that any workplace in South Africa or anywhere in the world must be a good corporate citizen, such usage should and must not be tolerated in any workplace.